Demurrer (Judge Deborah C. Servino)

Defendants DuPont Residential Care, Inc. dba Irvine Cottages and Jacqueline DuPont’s Demurrer is sustained without leave to amend, as to the second and third causes of action, and sustained with 15 days leave to amend as to the first cause of action. The Motion to Strike is denied as moot as to Item VI, as the Demurrer is sustained as to the second cause of action. The Motion to Strike is granted with 15 days leave to amend as to Items I and IV concerning punitive damages. The Motion to Strike is granted without leave to amend, as to Items II, III, and V.

First Cause of Action for Elder Abuse

Here, Plaintiffs have not stated sufficient facts with particularity to support the cause of action for elder abuse. The wrongful conduct alleged by defendants, i.e., failing to monitor and supervise Mr. Boone is based solely on conclusions without any specific facts to support the allegations. The conduct of defendants and the alleged causes for the lack of supervision do not rise to the level of elder abuse.

Nevertheless, “[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) As readily admitted by Defendants, a cause of action for negligence is stated. With regard to Defendant Jacqueline DuPont, the Complaint alleges vicarious liability against Jacqueline DuPont, based on several theories, none of which are addressed in the Demurrer. Pursuant to Quelimane, the court could overrule the demurrer the first cause of action and permit Plaintiffs to simply pursue a negligence cause of action. However, Plaintiffs have requested leave to amend, and there is a reasonable probability that Plaintiffs will be able to cure the deficiencies. Accordingly, the Demurrer as to the first cause of action is sustained with 15 days leave to amend.

Second Cause of Action for Violation of Residents’ Bill of Rights

With regard to the second cause of action, no cause of action is stated. There is no right of action here, as a skilled nursing facility is not involved. Here, the facility is alleged to be a residential care facility for the elderly. Plaintiffs have withdrawn the cause of action, but have not dismissed it. Accordingly, the Demurrer as to the second cause of action is sustained without leave to amend.

Third Cause of Action for Negligent Infliction of Emotional Distress

With regard to the third cause of action for negligent infliction of emotional distress, no cause of action is stated, nor can be stated. Such a cause of action requires the contemporaneously observation of the act that causes the injury and the injury itself. (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) Here, the act that caused the injury was the fall. Plaintiffs did not witness the fall, so they cannot recover. In both cases cited by Plaintiffs, Ochoa v. Superior Court (1985) 39 Cal.3d 159 and Keys v. Alta (2015) 235 Cal.App.4th 484, the plaintiff witnessed the lack of care, and the contemporaneous injury because of that lack of care. In contrast, Plaintiffs in the instant case witnessed only the lack of care, and the resultant pain and suffering from the injury, but not the injury-causing event itself. The events at the hospital are even further removed from liability, as Defendants were not even involved in any of the care there. There could be no contemporaneous act and injury. Accordingly, the Demurrer as to the third cause of action is sustained without leave to amend.

Motion to Strike

With regard to attorney fees under Welfare and Institutions Code section 15657, subdivision (a) (Item I of the Motion), the motion to strike this is granted with 15 days leave to amend.

With regard to attorney fees under Code of Civil Procedure section 1021.5 (Item II of the Motion), there are insufficient facts to allow such an award. No facts are alleged that Plaintiffs are seeking to enforce an “important right affecting the public interest.” Plaintiffs argue that enforcement of the Elder Abuse Act would suffice for this purpose, but the Elder Abuse Act already allows for the recovery of attorney fees, to encourage such lawsuits. The need for recovery under section 1021.5 does not exist. The motion to strike Item II is granted without leave to amend.

With regard to the recovery of treble damages (Item III of the Motion), there is no basis alleged for such. Section 3345 does not allow for treble “damages,” but only the trebling of penalties or other remedies the purpose and effect of which is to punish and deter. Here, Plaintiffs have not identified any such penalty or remedy and the Motion is properly granted. The case upon which Plaintiffs rely, does not support their argument. Plaintiffs seek leave to amend to seek treble punitive damages. Such trebling would be unconstitutional, and as it is contrary to law. Punitive damages must bear a rational relationship to a defendant’s financial condition. (Adams v. Murakami (1991) 54 Cal.3d 105, 123.) Otherwise, they are unconstitutional. (State Farm v. Campbell (2003) 538 U.S. 408, 425.) The motion to strike Item III is granted without leave to amend.

Punitive damages cannot be pled in conclusory terms. Instead, the facts supporting a claim for punitive damages must be set out clearly, concisely, and with particularity. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) However, “it has long been recognized that ‘(t)he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.’” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Ibid.) In ruling on a motion to strike, the Court should “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; see Perkins v. Superior Court, supra,117 Cal.App.3d at p. 6 [“stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner’s complaint.”].)

Here, the Complaint pleads punitive damages in conclusory terms, lacking sufficient facts to support punitive damages. With regard to the prayer for punitive damages (Item IV of the Motion), the conclusory allegations are insufficient, there are no allegations against Defendant DuPont individually, to support any claim for punitive damages against her. In addition, “[w]hen the defendant is a corporation, ‘[a]n award of punitive damages against a corporation . . . must rest on the malice of the corporation’s employees.’” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164 [citing Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167].) There are no allegations of fact alleging which employees of the entity Defendants acted with oppression, fraud, or malice, that the entity defendants had advanced knowledge and conscious disregard, authorization, or that any act of oppression, fraud, or malice was on the part of any officer, director, or managing agent, as is required by Civil Code section 3294. Accordingly, the motion to strike Item IV is granted with 15 days leave to amend.

With regard to the prayer for Prayer for Disgorgement of Benefits and Return of Profits (Item V), there are no allegations to support such relief. Plaintiffs have not argued otherwise. Accordingly, the motion to strike Item V is granted without leave to amend.

The Motion to Strike is denied as moot as to Item VI, as the Demurrer is sustained as to the second cause of action.